PARTIES: Pernelle Therese Alexander (first appellant) Jocellin Lee Jansson (second appellant) Keiran Eric Jansson (third appellant) Amber Tracey Jansson (fourth appellant) Ellen Louise Jansson (respondent)
JUDGMENT OF: Basten JA Handley AJA Brereton J
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 2592/08 3178/08
LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ
LOWER COURT DATE OF DECISION: 23 September 2009
COUNSEL: Ms J Needham SC (appellants) Mr G McNally SC (respondent)
SOLICITORS: Atkinson Vinden Lawyers (appellants) R J O'Halloran & Co (respondent)
CATCHWORDS: SUCCESSION – family provision and maintenance – appeals – where primary judge permitted elderly plaintiff/respondent’s affidavit evidence to be read notwithstanding that she did not attend having been required for cross-examination – where plaintiff resided in remote location and medical evidence that travel was undesirable – where proposed cross-examination would not have resulted in reversal of outcome or reduction of provision below that substituted by Court of Appeal – whether miscarriage of discretion under UCPR r 35.2(3) – held, no miscarriage – where appellant/defendants sought leave to adduce further evidence on appeal to address matters said to have been subject of potential cross-examination at trial –where no sufficient explanation for not calling further evidence at hearing – leave refused – SUCCESSION – family provision and maintenance – principles upon which relief granted – eligibility – dependency – where plaintiff’s need for accommodation was satisfied by provision of a house in which deceased owned two-thirds and she owned one-third share – held, plaintiff was partly dependent on deceased – SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – “proper provision” – significance of promises made and expectations created by testator – moral obligation – court interferes with dispositions in will only to extent necessary to make adequate provision for claimant’s proper maintenance etc – where fee simple granted by primary judge exceeded requirements of adequate provision and life estate would also be excessive, because should plaintiff be compelled or wish to cease to reside there permanently, she would no longer have any reasonable need to remain there and had sufficient assets to relocate – appropriate provision was right to occupy property for purposes of residence and pastoral activities terminable upon death or her earlier ceasing permanently to reside there
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Alexander v Jansson [2010] NSWCA 176
Case
[2010] NSWCA 176
Decision Date
CaseChat Overview and Summary
The case of *Alexander v Jansson* involved an appeal to the Court of Appeal of New South Wales concerning a family provision claim. The primary dispute centred on whether the deceased's elderly widow, Mrs. Jansson, had been made adequate provision from the estate for her proper maintenance, education, and advancement in life. The appeal also addressed procedural issues regarding the admissibility of affidavit evidence and the potential for adducing further evidence on appeal.
The legal issues before the Court of Appeal included whether the primary judge had erred in permitting Mrs. Jansson's affidavit evidence to be read despite her failure to attend for cross-examination, and whether the appellants had established grounds for leave to adduce further evidence on appeal. Additionally, the court was required to determine if Mrs. Jansson was an eligible applicant and if the provision ordered by the primary judge exceeded what was adequate for her proper maintenance, considering the significance of promises made by the deceased and the moral obligations arising from them. The court also considered whether a specific property had been correctly designated as notional estate.
The Court of Appeal held that there was no miscarriage of discretion in allowing Mrs. Jansson's affidavit evidence to be read. The court noted that the notice requiring her attendance for cross-examination was given late, and medical evidence indicated that travel would be a strain on her health. The court found that any potential cross-examination would not have altered the outcome or reduced the provision below what was ultimately substituted. Leave to adduce further evidence on appeal was refused due to a lack of sufficient explanation for not presenting it at the trial. The court found that Mrs. Jansson was partly dependent on the deceased, satisfying the eligibility criteria. However, the court determined that the fee simple granted by the primary judge exceeded the requirements of adequate provision, and even a life estate would be excessive.
The appeals were allowed in part. The Court of Appeal ordered that, in lieu of the fee simple granted by the primary judge, Mrs. Jansson was to receive a right of occupation of the Gerraween home lot, terminable upon her death or her earlier permanent cessation of residence there. The application for leave to adduce further evidence was dismissed.
Orders
Orders of the court
Appeal allowed in part
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
From those orders the children appeal, contending that the Family Provision Act application ought to have been dismissed, or alternatively that provision should not have exceeded a right of residence or life estate: the appeal in the 66G proceedings being CA 40388/09, and the appeal in the FPA proceedings being CA 40389/09. The issues are:· Whether his Honour erred in permitting the mother’s affidavit evidence to be read when she did not attend for cross-examination (Ground 3). Associated with this is the appellants’ application for leave to adduce further evidence;· Whether his Honour erred in finding that the mother was an eligible person in category (d) (Ground 4) and that there were factors warranting the making of her claim (Ground 4A); · Whether the provision ordered by his Honour exceeded what was adequate for the mother’s proper maintenance (Grounds 6, 7, 8, 9 and 9A); and· Whether his Honour erred in designating the Gerraween home lot as notional estate (Ground 10).Cross-examination and Fresh Evidence Mrs Jansson swore affidavits in support of her case on 5 June and 25 June 2008. The hearing was set down to commence on 20 April 2009. Fourteen days before then, on 6 April 2009, the estate’s solicitors gave notice that she was required to attend for cross-examination. Uniform Civil Procedure Rules, r 35.2(3) provides that the affidavit of a witness who does not attend for cross-examination when required by the other party may not be read into evidence unless the witness is dead or the court otherwise orders. Mrs Jansson sought an “otherwise order” for that purpose. On 9 April 2009, Dr Kim Peters, general medical practitioner, swore an affidavit deposing that travel to Sydney for the impending court case would be a strain on Mrs Jansson’s health, that her hearing loss would be an impediment, and that the doctor had therefore advised her not to travel “this long distance”. So far as material ultimately made available to the court reveals, that affidavit was apparently received by the estate’s solicitors on Friday 17 April 2009, when the hearing was to commence the next working day, Monday 20 April. However, no notice requiring Dr Peters for cross-examination was given, nor was objection taken to the reading of the doctor’s affidavit on the voir dire for the purposes of considering the application made on behalf of Mrs Jansson that her affidavits be read notwithstanding that she was required but did not attend for cross-examination. The Associate Judge said:The notice requiring her attendance was only given two weeks ago. One might have assumed a lady of 93 who has brought proceedings and who hasn’t been told up to two weeks before the hearing date that she might be required to attend might reasonably assume she doesn’t have to go to court. … I think that elderly ladies of 93 might have some elasticity allowed to them in the question of whether or not they should travel some hundreds of kilometres from their rural estates to Sydney.
Decision
Reasons for decision
No submission was made, at trial nor on appeal, that any other prerequisite for a designating order was unsatisfied. The primary judge did not refer explicitly to the requirement, imposed in the circumstances of this case by s 28(5), that (as Mrs Jansson’s application was brought only pursuant to an order extending time under s 16) a designating order could be made only if there were “other special circumstances” as referred to in s 28(5)(d). No complaint was made as to the absence of a specific finding in this respect, and it must be treated as being implicit in his Honour’s decision. In any event, such circumstances would have been provided by the belated falsification, but only after time for bringing an application under the Act had expired, of Mrs Jansson’s expectation, generated by the deceased’s assurance, that she would be permitted to remain undisturbed in the home on the property so long as she pleased. Conclusion It follows that in my opinion the Notice of Motion for leave to adduce further evidence should be dismissed; and the appeals should be allowed in part, to the intent that in lieu of the fee simple granted by way of provision provided by the Associate Judge, Mrs Jansson receive a right of occupation of the Gerraween home lot of the type that I have described. I propose the following orders: